IN THE CASE OF: BOARD DATE: 14 October 2022 DOCKET NUMBER: AR20220002820 APPLICANT REQUESTS: An upgrade of his undesirable discharge and restoration of his rank/grade to specialist four/E-4. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states that he was discharged after he was beaten. He does not remember anything about that day. It took his parents three weeks to be able to identify him, and when he woke up he was at home with discharge papers. He signed his discharge papers so he could go home, they never told him what they were for. 3. The applicant enlisted in the Regular Army on 24 February 1972. 4. On 1 May 1974, the applicant was promoted to the grade of E-4. 5. On or about 27 May 1974, the applicant was discharged for immediate reenlistment in the Regular Army. His DD Form 214 (Report of Separation from Active Duty) for that period is not available for review. He reenlisted on 31 May 1974, for 3 years. 6. On 18 October 1974, court-martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) shows he was charged with: a. Violation of Uniform Code of Military Justice (UCMJ), Article 134, for wrongfully communicating a threat to Sergeant and Private First Class on or about 18 October 1974; being drunk and disorderly, on or about 18 October 1974. b. Violation of UCMJ, Article 111, for operating a vehicle, to wit: a motorcycle, while drunk, on or about 18 October 1974. c. Violation of UCMJ, Article 91, for failure to obey a lawful order from a commissioned officer, on or about 18 October 1974. d. Violation of UCMJ, Article 86, for being absent without leave from 23 September 1974 to 7 October 1974. 7. On 23 October 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him. Subsequent to this counseling, the applicant voluntarily requested discharge under the provisions Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge. 8. In his request for discharge the applicant acknowledged he understood that if he was discharged under other than honorable conditions, he would be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State law. He also indicated that he understood he may face substantial prejudice in civilian life because of an undesirable discharge. He elected to submit a statement on his own behalf. 9. By letter to the Commanding General, dated 23 October 1974, the applicant stated that he just could not understand why enlisted members and noncommissioned officers are not treated the same and that he could not live with it any longer. He refused to Soldier any longer and did not want to remain in the Army and that he could not be rehabilitated to adapt to military life. He did not care about the type of discharge he would receive if his application was approved. 10. On or about 23 October 1974, the applicant's immediate commander formally recommended his discharge under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. 11. On 1 November 1974, the applicant underwent a medical examination in accordance with Army Regulation 40-501 (Medical Services – Standards of Medical Fitness), which found him qualified for a Chapter 10, administrative separation. 12. On 15 November 1974, the separation authority approved the recommended action and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate) and reduction to the lowest enlisted grade. 13. The applicant was discharged on 22 November 1974. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10. His service was characterized as under other than honorable conditions (UOTHC). He completed 5 months, and 7 days of net active service this period. He had 15 days lost time from 23 September 1974 to 7 October 1974. He was awarded or authorized the National Defense Service Medal. 14. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 15. The applicant provides a self-authored statement, which states he has very little memory of what happened. The incident that occurred left him physically, mentally, and emotionally unstable. He cannot hold a job due to those problems. His life has never been normal due to the incident. He is hoping to be able to get a rank upgrade back to E-4, which is what he was before discharge, so he can go to the Veterans Affairs hospital and seek medical care. 16. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 17. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 18. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting an upgrade of his undesirable discharge and restoration of his rank/grade to specialist four/E-4. The applicant contends he was discharged after he was beaten but doesn’t remember anything about that day. a. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 24 February 1972; 2) On 18 October 1974 court-martial charges were preferred against him for multiple violations of UCMJ; 3) On 22 November 1974 the applicant was separated under provisions of AR635-200, Chapters 10. His service was characterized as under other than honorable conditions. b. Military medical records reviewed included the Standard Form 88 (Report of Medical Examination), dated 1 November 1974, which found the applicant without defects or diagnosis, and cleared for separation. A review of JLV was void of any health records associated with the applicant, and he is not service connected. The applicant claimed that he was discharged after he was beaten and has no recollection of the event. He also contends it took his parent 3 weeks to identify him. He offers no evidence to support these contentions (e.g., police/MP report, letter from parents). It is reasonable to think if the applicant had such an experience while on active duty, there would be evidence in the form of medical records and police reports. It is also reasonable to think he and/or his parents would have reported such an experience once he was in his parents custody. Lastly, the applicant did not claim in his petition that he had an experience that would mitigate his misconduct. c. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant did not have a condition or experience during his time in service that mitigates his misconduct. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? No. The applicant states that he was discharged after he was beaten and has no recollection of the event. He also contends that it took his parents 3 weeks to be able to identify him. He provided no evidence to support either claim and did not state in his petition that he had an experience that mitigates his misconduct. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. 1. During the period being contested, the applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and carry an under other than honorable conditions characterization of service. a. A majority of the Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in- service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. b. The member in the minority determined that although the medical advisory official found insufficient evidence of in-service mitigating factors to overcome the misconduct, and although the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination, the member in the minority felt the applicant served a full term of service before his incident and he should not continue to be punished. A clemency upgrade seems appropriate. 2. The Board agreed that when a member is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade per AR 600 200. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs, on 3 September 2014, to carefully consider the revised post- traumatic stress disorder (PTSD) criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 6. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002820 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1